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A series of pertinent – and impertinent—observations about military law. 

We keep looking for clever ways to creatively serve defense interests in courts-martial.     Here are a few items encountered recently:

Appeal to fair play:  “There’s an old story told in India, but how you can tell the difference between when it’s light and when it’s dark.  The question was posed by a philosopher to his college class.   One student said , “When you can tell the difference between a cat and a dog.” That was not the correct response,    A second student suggested “when you can tell the difference between an elephant and a tiger.” That was not correct either.  Finally, the philosopher explained:  “The difference between light and darkness is when you can look into the eyes of another human being and truly communicate.”    I pray you’ll have such clear vision in this case.  You’re dealing with [an innocent soldier][somebody who deserves extremely light punishment, at most]….”

Obnoxious prosecutor?  How about a comment that “Wow, trial counsel is really after Accused.  Some folks need to get their toes stepped on.   Today’s prosecutor seems to be one of the individuals who does the stepping.   From where I sit, it’s undeserved.  Let me tell you how come…”

Effective prosecution opening argument?   Suggested DC response: “I am truly impressed — that was a great opening argument.   However, there’s something not quite right about it.   Look: Have you ever had the experience of ordering fish in a fancy restaurant    And they the bring you the entire fish, with a glassy, dead eye staring at you on the plate.  It feels funny, it’s not quite right. And that’s a lot like trial counsel’s opening statement today – like the fish head and glassy eye, the argument seems a bit strange.   Well, you should trust your instinct about the  iffy prosecution argument  — it’s not quite right,  in fact, it’s extreme. “

Humor if you err?    “I apologize, I screwed up.  My [wife/husband] advised me not to say it like that when I was preparing the case.  So let me try again.  You know the old saying, “If at first you don’t succeed…try doing it the way your spouse says to.”

Something in the defense case you can’t quite explain?  “Yes, it’s a problem.  We admit it.   But let’s be realistic — life is full of these little dilemmas.  For example:  If I’m not meant to have midnight snacks, why is there a light in my refrigerator?”

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Awhile back, we began looking at interesting voir dire possibilities in cases involving accused Muslim Americans.   Since then, we’ve been in contact with two Islamic legal defense organizations.

We think we’re on to something   — disparate sentencing for minorities and those who might be “different.”’

Proof that this  isn’t just somebody’s imagination lies in a 2013 American Bar Association report that black male prisoners were given sentences almost 20% longer than those imposed on similarly situated whites.  The ABA  — no radical ACLU-type organization — is entitled to considerable weight when it presents such data.  Particularly when the results occurred when vigorous sentencing guidelines were in place to hopefully maximize fair play.

We will continue to dig – hopefully, to produce an article or two which will be  useful to minority clients.

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Four very naughty questions for the Judge Advocate “establishment:”

1.       What do you call a successful career defense counsel?   ANSWER:   Typically, Lieutenant Colonel…but NOT Colonel.

2.       Captain Thompson has won five cases in a row for the defense.  What’s next for him?   ANSWER:   Assignment to the prosecution side of the house for “seasoning.”

3.       Name some important cases where a wealthy accused turns his/her defense over entirely to uniformed counsel rather than a civilian defense attorney.     ANSWER:  ????

4.       For years, the Army JAG defense community published an ambitious magazine called  THE ADVOCATE.   It was chock full of creative suggestions for exceptionally effective defense advocacy.  Where will you find THE ADVOCATE today?     ANSWER:   If at all,  in a dusty pile of obsolete publications. ..the last issue we can find is dated  summer 1984.

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